[1]This appeal engages the application of the provisions of the Human
Rights Code, R.S.B.C. 1996, c. 210 prohibiting discrimination on the
basis of sex in providing a service (s. 8) and employment (s. 13), and the
application of the group rights exemption (s. 41), to a circumstance in which
Ms. Nixon was denied the opportunity to train (and serve) as a volunteer peer
counsellor for the respondent Vancouver Rape Relief Society.

[2]Ms. Nixon is a post-operative male-to-female transsexual woman. Although
she was born with the physical characteristics of a male and was raised as
a male, she realized at an early age that, as the Human Rights Tribunal stated
it, “her physical maleness did not accord with her own sense of herself as
a female”. In 1990 she underwent sex reassignment surgery and her birth certificate
has since been amended to show her as a female.

[3]Vancouver Rape Relief Society was described by the Tribunal as a “Vancouver,
non-profit, feminist organization whose mandate is to provide services to
women victims of male violence and to fight violence against women”. The
Tribunal found it provides “a number of different services to women who are
survivors of male violence, including: a 24-hour rape crisis telephone line,
a transition house for women and their children, emotional and informational
support, referrals, and peer counselling in group sessions” and that it operates
“as a non-hierarchical collective of unpaid volunteers and paid staff members.”

[4]Ms. Nixon, from her experiences, realized the value of the type of
service provided by the Society and wanted to "give something back”.
She responded to an advertisement placed by the Society for volunteers who
wished to train as peer counsellors for female victims of male violence, and
was successfully pre-screened to ensure she agreed with the Society’s collective
political beliefs. When she attended for training, she was identified as
a person who had not always lived as a female, and was asked to leave. The
Society has continued to deny Ms. Nixon the opportunity to train as a volunteer
peer counsellor because she had not always been a female. Its view is that
"a woman had to be oppressed since birth to be a volunteer at Rape Relief
and that because she had lived as a man she could not participate".

[5]Thus the two parties are, on the one hand, a non-profit society formed
to assist persons seen by its members as marginalized and disadvantaged by
men, and on the other, a person found by the Tribunal to be “a member of a
group that has been marginalized”, and their dispute arises in the context
of volunteer activity.

[6]Language makes a binary distinction between male and female, although
there was reference in the hearing to sexual identity existing as a continuum.
Ms. Nixon’s complaint is that the Society chose to distinguish her from the
vast majority of women on the basis that her starting place on the continuum
of sexual identity was a position other than one initially identified as female.

[7]As a justification for denying Ms. Nixon the opportunities she seeks,
the Society has advanced its collective belief that all those offering peer
counselling on behalf of the Society, and thus necessarily that all those
it trains in peer counselling, share the same experience of being born and
raised a female, which Ms. Nixon was not. It says that this belief is complementary
to the tenets to which all volunteers and members must subscribe.

[8]The Human Rights Tribunal upheld Ms. Nixon’s complaint that the Society
had discriminated against her under both ss. 8 and 13 of the Code
and awarded Ms. Nixon $7,500 in damages. The decision of the Tribunal is
indexed as 2001 BCHRT 1. The Society brought an application for judicial
review of the Tribunal's decision, pursuant to the Judicial Review Procedure
Act, R.S.B.C. 1996, c. 241. The petition for judicial review was
heard by Mr. Justice Edwards. He set aside the Tribunal's decision, giving
reasons for judgment that are indexed as 2003 BCSC 1936. Ms. Nixon appeals
from that order.

[9]For the reasons that follow, I conclude that the learned reviewing
judge was correct in his conclusion that the Human Rights Code
does not extend to the impugned activity, substantially for the reasons he
has articulated in his discussion of s. 41 of the Code. However,
I disagree with his conclusion that the analytical framework set out in Law
v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R.
497, 170 D.L.R. (4th) 1, applies in determining whether the alleged discrimination
is established, and with his subsequent conclusion that discrimination was
not established. In my view, the behaviour of the Society meets the test
of ‘discrimination’ under the Human Rights Code, but it is exempted
by s. 41.

[10]The question is not one of concurrence with, or approval of, the belief
here advanced to exclude Ms. Nixon from the volunteer activity to which she
aspired. It is, rather, a question of the meaning of the Code:
does it allow the Society to exclude her?

[11]Although the Legislature could elect to prohibit this behaviour, it
has not done so in my view.

[12]However, before I embark on my discussion, I caution the reader that
although the case was advanced as one of discrimination in the provision of
a service customarily available to the public (contrary to s. 8 of the Code)
and in employment (contrary to s. 13 of the Code) whether a
service was here provided by the Society to a volunteer for peer counselling
or whether the denied activity is in the nature of employment were not questions
explored on this appeal.

[13]In the hearing before the Human Rights Tribunal, the Society contended
that the activity to which Ms. Nixon aspired, that is, training and serving
as a volunteer peer counsellor, was neither a service customarily provided
to the public within the meaning of s. 8 of the Code, nor employment
within the meaning of s. 13 of the Code. The Tribunal did
not agree and found that the activity was both a service and employment within
the scope of those sections, leading it to consider other issues in the case.

[14]Those conclusions were not challenged before the reviewing judge, and
are not challenged by the Society on this appeal.

[15]In the course of the hearing of the appeal, the basis for the application
of s. 8 and s. 13 came into question. Counsel for Ms. Nixon offered to provide
a written submission on the application of those sections, and has done so.

[16]The Tribunal, in finding that the training was "a service",
relied upon evidence that the Society "advertises publicly for its volunteers
and offers to provide the necessary training to all female members of the
public" and the "training received at Rape Relief would be very
useful elsewhere in the feminist movement and that Rape Relief considers the
number of volunteers it trains as one of their contributions to the local
women's movement". It held that "Rape Relief offers a number of
different services to the public including a 24-hour crisis line, a transition
house and a training program for volunteer counsellors" and the "training
program is an adjunct to its other services". With that evidence and
legal authority such as University of British Columbia v. Berg,
[1993] 2 S.C.R 353, 102 D.L.R. (4th) 665, 79 B.C.L.R. (2d) 273, and
Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, 133 D.L.R.
(4th) 449, 18 B.C.L.R. (3d) 1, it was open, in my view, to the Tribunal to
conclude that there was the requisite public relationship between the Society
and the trainee and the requisite holding out to the public, to qualify the
training as a service customarily available to the public.

[17]My view is different on s. 13. While I proceed on the premise that
s. 13 must be considered, given the basis on which judicial review was sought,
I must express my reservation on the application of that section as I am not
confident that this is the correct approach.

[18]It is clear that the term "employment" in s. 13 of the Code
has a broader meaning than is ascribed to it in employment law. For example,
in Reid v. Vancouver Police Board (2005), 44 B.C.L.R. (4th)
49, 2005 BCCA 418, Lowry J.A. for the majority, referring to Barrie
(City) v. Canadian Union of Public Employees, Local 2380 (CUPE), [1991]
O.P.E. D. No. 41 (Ont. P.E. Trib.) (Q.L.), said at para. 41 that the proper
approach required "consideration of factors that are well beyond what
traditional common law perceptions of the employer-employee relationship might
dictate". In the same spirit, the Federal Court of Appeal has applied
a broad meaning to the term "employ" and in Canadian Pacific
Ltd. v. Canada (Human Rights Commission), [1991] 1 F.C. 571 (C.A.),
120 N.R. 152, found it to encompass the relationship between Canadian Pacific
Ltd. and an employee of a firm with whom Canada Pacific Ltd. contracted for
services. As well, in Pannu, Kang and Gill v. Prestige Cab Ltd.
(1986), 73 A.R. 166 (C.A.), 31 D.L.R. (4th) 338, the Alberta Court of Appeal
interpreted the words "employer", "employee" and "employment"
to encompass a relationship between a taxi company and taxi drivers in a fact
situation in which the taxi drivers were more in the nature of independent
contractors. We were also referred to tort cases in which a duty of care
identical to that owed to an employee was found to be owed to a volunteer:
Huba v. Schulze and Shaw (1962), 32 D.L.R. (2d) 171 (Man. C.A.),
37 W.W.R. 241; Poppe v. Tuttle (c.o.b. 800 Ranch) (1980), 14
C.C.L.T. 115.

[19]The effect of those cases and the relevance of discussions on the law
of negligence to this issue should wait, in my view, for another day and we
must decide the case on the basis of the record before us. Given the breadth
of volunteer activity in the community, the myriad benefits it can provide
and the diversity of motivation, ranging from pure altruism and a desire to
"give back" to enlightened self-interest in developing social relationships,
experience and training, volunteerism as employment is an important question
that remains for another day.

[20]I turn now to the substance of the appeal. Ms. Nixon's initial complaint
against the Society alleged it had violated s. 8 of the then Human Rights
Act, R.S.B.C. 1984, c. 22, now s. 13 of the Human Rights Code.
She later amended the complaint to add an allegation of breach of s. 3 of
the Act, now s. 8 of the Code. Although the complaint
was made under the Act, it was decided under the Code.
In this decision I refer generally to the present Code provisions,
as they bear the section numbers and the language considered by the Tribunal
and reviewing judge. However, I append as an addendum the language in effect
on the date of the complaint, a predecessor provision to s. 41 and the present
language of s. 3 that came into force in 1997 as s. 1.1, expressing the purposes
of the Code.

[21]The two sections found by the Human Rights Tribunal to have been breached
by the Society are s. 8(1)(a) and s. 13(1)(a). Sections 8(1) and 13(1) provide:

8(1) A person must not, without a bona fide and reasonable
justification,

(a)
deny to a person or class of persons any accommodation, service or facility
customarily available to the public, or

(b)
discriminate against a person or class of persons regarding any accommodation,
service or facility customarily available to the public

because of
the race, colour, ancestry, place of origin, religion, marital status, family
status, physical or mental disability, sex or sexual orientation of that person
or class of persons.

…

13(1) A person must not

(a)
refuse to employ or refuse to continue to employ a person, or

(b)
discriminate against a person regarding employment or any term or condition
of employment

because of the race, colour, ancestry, place of origin, political belief,
religion, marital status, family status, physical or mental disability, sex,
sexual orientation or age of that person or because that person has been convicted
of a criminal or summary conviction offence that is unrelated to the employment
or to the intended employment of that person.

[23]Section 41, on which the outcome of this appeal depends, exempts non-profit
organizations from the application of the Code in these terms:

41 If a charitable, philanthropic, educational, fraternal,
religious or social organization or corporation that is not operated for profit
has as a primary purpose the promotion of the interests and welfare of an
identifiable group or class of persons characterized by a physical or mental
disability or by a common race, religion, age, sex, marital status, political
belief, colour, ancestry or place of origin, that organization or corporation
must not be considered to be contravening this Code because it is granting
a preference to members of the identifiable group or class of persons.

[24]Courts approach human rights legislation using a broad, liberal and
purposive approach to "advance the broad policy considerations underlying
it", to interpret the provisions "in a manner befitting the special
nature of the legislation", giving it "such fair, large and liberal
interpretation as will best ensure the attainment of their objects":
Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84 at
p. 89, 40 D.L.R. (4th) 577; Ontario Human Rights Commission and O'Malley
v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321;
and North Vancouver School District No. 44 v. Jubran (2005),
253 D.L.R. (4th) 294, 39 B.C.L.R. (4th) 153, 2005 BCCA 201. At the same time,
as observed by Lamer C.J. in University of British Columbia v. Berg,
supra, in a passage referred to by La Forest J. in his concurring reasons
in Gould v. Yukon Order of Pioneers, supra, at para.
50: "[t]his interpretative approach does not give a board or court license
to ignore the words of the Act in order to prevent discrimination wherever
it is found."

Today there is only one principle or approach, namely, the words of an
Act are to be read in their entire context and in their grammatical and ordinary
sense harmoniously with the scheme of the Act, the object of the Act, and
the intention of Parliament.

[26]Our task is to review the order of the reviewing judge. His task was
to review the Tribunal's decision. The Tribunal, of course, is owed deference
by the courts in findings of fact and the application of those facts to the
law. In those matters, the question for the reviewing judge was whether the
Tribunal's conclusions were reasonable: Reid v. Vancouver Police Board,
supra, and Law Society of New Brunswick v. Ryan, [2003]
1 S.C.R. 247, 2003 SCC 20. However, as to the proper analysis regarding the
existence of discrimination and the interpretation of the Code,
these questions are questions of law and the decision of the Tribunal was
required to be reviewed for correctness: Canada(Attorney
General) v. Mossop, [1993] 1 S.C.R. 554, 100 D.L.R. (4th) 658; University
of British Columbia v. Berg, supra; and Dr. Q. v. College
of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226,
11 B.C.L.R. (4th) 1, 2003 SCC 19. And the reviewing judge's order as to the
standard of review and other questions of law falls to be considered by this
Court for correctness: Dr. Q., supra, para. 43.

[27]The case naturally divides into two parts, the question of discrimination
and the application of the group rights exemption (s. 41).

I. Discrimination

[28]The Tribunal found the Society had discriminated against Ms. Nixon.
The reviewing judge concluded it had not. Both approached the question as
one of the application, or not, of the analysis set out in Law
and a statement of this Court in British Columbia Government and Service Employees'
Union v. H.M.T.Q.(2002), 216 D.L.R. (4th) 322,
4 B.C.L.R. (4th) 301, 2002 BCCA 476 ("Reaney"). In
Reaney, Lambert J.A. said, referring to the analytical framework
for s. 15 of the Canadian Charter of Rights and Freedoms set
out in Law:

… In my opinion, the same analytical framework must govern the determination
of whether there has been a violation of s. 13 of the Human Rights Code of
British Columbia. But it must be understood that the Law framework
does not consist of a series of strict tests but rather a cluster of points
of reference. …

[30]One of the consequences of the application of the Law
framework is to engage the Tribunal, or a court, in consideration of the degree
to which the impugned behaviour has injured the human dignity of the complainant.

[31]I observe firstly, that the words "discriminate" and "discrimination"
are not found in the sections of the Code invoked by the complaint:
s. 8(1)(a) which prohibits denying a service, and s. 13(1)(a) which prohibits
refusing employment, both for the reasons listed.

[32]The only use of the word "discriminate" in conjunction with
those sections is in the enforcement and remedy sections of the Code
which provide for a remedy where discrimination is established. And as to
the use of that word, its meaning is set out in s. 1, supra. That
provision, replicated earlier, is the Legislature's expression of its intention
that conduct falling within any of the eleven listed statutory provisions
is, by definition, discrimination. The two sections with which we
are here concerned, s. 8(1)(a) and s. 13(1)(a), are included in the eleven
listed provisions in s. 1.

[33]The Tribunal's findings, which were not challenged, that the Society,
for a prohibited reason, denied Ms. Nixon a service customarily available
to the public and refused her employment are, by definition, findings of discrimination
because the Legislature has said that those behaviours are discrimination.
Accordingly, they entitle Ms. Nixon to an order in her favour (s. 37) unless
the Society can establish a defence. In this case, the defence that the Society
asserts is the group rights exemption in s. 41.

[34]This discussion of the meaning of ss. 1, 8 and 13 is enough to dispose of this issue, but a
great deal has been made of the application of the Law framework,
and there are a handful of provisions prohibiting discrimination not enumerated
in the definition in s. 1 of "discrimination". Those sections not included in the s. 1 definition of
discrimination themselves include the word "discriminate" in the
text of the prohibition; for
example, s. 8(1)(b): “A person must not … discriminate against a person … regarding any … service … customarily
available to the public". The prohibitions against discrimination that
are not enumerated in the definition in s. 1 invite the question as to the
meaning of the word “discriminate” and the application of the Law
framework for complaints under them.

[35]The Tribunal, rendering its decision
before Reaney was published, discussed the implications of applying
the Law framework to a human rights complaint, including the
implications of a requirement that the complainant establish injury to human
dignity. The Tribunal concluded that the Law framework, designed
to address challenges to law or government action under s. 15 of the Charter,
may overpower the relatively discreet event, the nature of the relationship
(often between private parties) and the personal affront that is the subject
of the human rights complaint, and in this way may have a narrowing consequence
unsuited to a human rights context, although suited to the broad language
and broad reach of s. 15 for which it was designed.

[36]Reaney involved a s. 13(1)(b) complaint. The issue was a term of a collective agreement that "topped
up" maternity benefits provided by Employment Insurance with the result
that adopting mothers were treated under the collective agreement less generously
than biological mothers, just as they were under the Employment Insurance
program. The Employment Insurance program itself had been found in Schafer
v. Canada (Attorney General) (1997), 149 D.L.R. (4th) 705, 35 O.R.
(3d) 1 (Ont. C.A.) not to amount to discrimination under s. 15 of the Charter.

[37]Reaney held that the Law framework applied to
the complaint, although not addressing the implications of either Meiorin
or Grismer, or the other questions explored in the decision
of the Tribunal in this case.

[38]The application of Law
was also raised in British
Columbia Public School Employers' Assn. v. British Columbia Teachers' Federation
(2003) 15 B.C.L.R. (4th) 58, 2003 BCCA 323 (the "Teachers case"),
concerning internal co-ordinations of employment benefits for married co-teachers
which permitted primary enrolment to only one teacher of a couple. Only one
member of the Court, in his separate concurring reasons for judgment, referred
to Law, holding that the employment benefit did not cause injury
to human dignity, and that discrimination under s. 13 was not established.

[39]Both Reaney and the Teachers case, concerning
s. 13(1)(b), fell outside the definition in s. 1 of "discrimination".
Further, Reaney concerned a condition of employment premised
on a government program that had been found not to contravene the equality
section of the Charter. The broad application of the Law
framework in a case without that governmental overtone is not obvious
to me, particularly in light of Meiorin,
Grismer and Oak Bay, and considering the issues
otherwise referred to in the Tribunal's decision. However, that is an issue
that must wait for its own case.

[40]The Society urges the Court,
in recognizing the broad scope of the Code and the high purposes
set out in s. 3, to also recognize that the result of not applying the Law
framework may be to brand equality-seeking organizations as discriminatory,
creating an unfair burden on them to defend their discriminatory conduct,
perhaps in circumstances in which the statutory defences are not available.

[41]I do not accept the premise of unfairness. If, as I conclude here,
the Legislature has said that certain behaviour is prohibited and has established
the available defences, it seems to me the Legislature, as law-maker, has
set the balance of competing rights in a way that we may not ignore and which
is presumptively fair.

[42]It follows that I conclude that the reviewing judge erred in finding
that discrimination was not established. The issue, then, is the application
of s. 41 raised in defence.

2. Application
of s. 41 of the Code

[43]Section 41 is commonly referred to as the group rights exemption, and
it protects certain non-profit organizations such as an equality-seeking organization,
as the Society describes itself, from liability. Section 41 is at least a
partial answer to the Society's concern that defences in the Code
do not protect organizations established to redress inequality.

[44]Section 41, again, provides:

41
If a charitable, philanthropic, educational, fraternal,
religious or social organization or corporation that is not operated for profit
has as a primary purpose the promotion of the interests and welfare of an
identifiable group or class of persons characterized by a physical or mental
disability or by a common race, religion, age, sex, marital status, political
belief, colour, ancestry or place of origin, that organization or corporation
must not be considered to be contravening this Code because it is granting
a preference to members of the identifiable group or class of persons.

[45]The Tribunal concluded that s. 41 did not apply to protect the Society
from liability for discrimination:

[211] Section 41 operates as a limited exemption from the application
of the Code. It is an exemption available to organizations
which have a particular, primary purpose. I am required to interpret
the exemption section in light of the stated purposes of the Code in
s. 3. While limitations on rights in statutes of general application
like the Code are normally restrictively interpreted, because s. 41
is also a rights-granting provision, it is not subject to a restrictive interpretation.
(Re Caldwell and Stuart (1984), 15 D.L.R. (4th) 1 (S.C.C.) at pp. 19-20)

…

[219]
I do not doubt … that the political beliefs of the current members of the
collective, ...inform the manner in which Rape Relief performs its stated
primary purposes of providing services to the victims of rape and of being
an "educational force for progressive changes in attitudes, laws, institutional
procedures, and to work for the prevention of rape." … The
political views that inform Rape Relief's purpose and the manner in which
it delivers its services do not change the primary purpose of the organization
which, I find, is the provision of services to all women who are the victims
of sexual assault regardless of their political belief or their life experience.

[220] Moreover, with respect to its asserted political
belief, Rape Relief has not established a link, either direct or indirect,
between its belief and its discrimination on the basis of sex. Ms.
Nixon says that she shares Rape Relief's beliefs. If what Rape
Relief is proposing is that Ms. Nixon must share a common experience rather
than a system of thought, belief, principle or like-mindedness, they are not,
in my view, asserting a "political belief" captured by s. 41.

[221]
Rape Relief is not, and has never been, an organization that has as its primary
purpose the promotion of women with a shared life experience, or the promotion
of the interests of women who have never experienced male privilege. At the
time Ms. Nixon was asked to leave the volunteer training program, Rape Relief
had no policy in place which would indicate that their primary purpose was
the promotion of the interests of only those women who fit their political
definition of what it means to be a woman. In fact, the evidence
of the Rape Relief collective members was that they had provided, on at least
two occasions, services to transsexual or transgendered women.

[222]
Rape Relief is an organization that has as a primary purpose the promotion
of the interests of all women in responding to male oppression and violence. There
was no evidence before me that there is, in fact, a shared life experience
that is common to all non-transsexual women, and Rape Relief called no evidence
to show that it requires its volunteers, or its clients, to have such a common
experience. In fact, the evidence that they did call leads me to the opposite
conclusion. …

[223] Further, Rape Relief makes no inquiry as to a
volunteer's life experience, including whether a prospective volunteer has
lived some part of her life as a man, in the screening interview conducted
before accepting a volunteer into their training program. Instead, they accept
that all women have had a similar life experience and that, unless they present
with an appearance that would trigger an inquiry, they are a woman. Some
transgendered women "pass" without triggering an inquiry. In
fact, in undisputed evidence, Dr. Watson testified that some are able to pass
without inquiry from their intimate partners or from their medical doctors.
Hence, it is only those transgendered women with what society has labelled
as masculine features who would be subject to the confrontation Ms. Nixon
experienced. Rape Relief discriminated on what it perceived, or
believed, the life experience of Ms. Nixon had been, not on any actual knowledge
of that experience.

[224]
I conclude that the exclusion practised by Rape Relief is not justified in
an objective sense by the nature of the organization. Rape Relief's
conduct is not exempted under s. 41 of the Code.

[46]The reviewing judge held that s. 41 provided a defence to the Society
for its behaviour. In so holding he stated:

[114]
In its analysis of s. 41 the Tribunal recognized at para. 211 of the decision
that in the leading case on s. 41, Re Caldwell and Stuart, [1984] 2
S.C.R. 603 ("Caldwell"), the Supreme Court of Canada found
it was a rights-granting provision and therefore not subject to the restrictive
interpretation generally applicable to legislative provisions which place
limitations on rights.

[115]
Nevertheless, the Tribunal, by interpreting s. 41 as requiring Rape Relief
to prove its primary purpose was the promotion of the interests of women "who
met their political definition of what it means to be a woman", gave
s. 41 a restrictive interpretation inconsistent with that of the Supreme Court
of Canada in Caldwell.

[116]
In Caldwell, supra at p. 612 McIntyre J., for the Court, noted
that the Court of Appeal, per Hutcheon J.A., held that s. 22 (the predecessor
to s. 41) "permitted the preference of one member of the identifiable
group over another". This conclusion was upheld by the Supreme Court
of Canada. At p. 628 McIntyre J. indicated this meant the employer, a Catholic
school, was entitled to distinguish in its hiring policy "for the benefit
of the members of the community served by the school and forming the identifiable
group", between members of its "identifiable group" of Catholics
on the basis of which of them adhered to Catholic dogma on marriage.

[117]
Under s. 41, the school as employer in Caldwell was entitled to employ
as teachers only those Catholics who were "Catholic enough" (through
their adherence to Catholic dogma on marriage) to serve as an example to its
students and whose adherence to Catholic dogma would, according to the bona
fide religious beliefs of the employer, benefit the "identifiable
group", Catholics, it served, without proving that its primary purpose
was to promote the interests only of an "identifiable group" whose
adherence to Catholic dogma met the same standard that it demanded of its
Catholic employees.

[118]
By parity of reasoning, Rape Relief was not required to prove its primary
purpose was the promotion of the interests of persons who were "woman
enough" to meet its "political definition" of women as persons
who had lived their entire lives as females in order to employ only persons
who met that definition as peer counsellor trainees. This is because it had
the bona fide belief that employment of only such persons benefited
its clients from the "identifiable group", women, (however defined)
by protecting them from the possible trauma of dealing with persons its female
clients, already traumatized by male violence, might perceive as male and
therefore threatening or at least "not woman enough" and therefore
unwelcome confidantes.

[119]
Just as the school in Caldwell did not have to prove its insistence
that Catholic teachers adhere to Catholic dogma would actually benefit students
from its identifiable group of Catholics with a better Catholic education,
a matter impossible to prove not least because the school also employed Protestant
and Muslim teachers who adhered to the dogma of their denominations, so Rape
Relief did not have to prove that exclusion of male to female transsexuals
from its peer counsellor training program would actually benefit its clients
with a better or less traumatic counselling experience, any more than it had
to prove its clients would benefit from the exclusion of men.

[120]
I find the Tribunal failed to correctly interpret and apply the Supreme Court
of Canada decision in Caldwell on the application of s. 41 in this
case and that its conclusion that s. 41 did not permit Rape Relief to exclude
Ms. Nixon from its peer counselling training program was unreasonable.

[47]Ms. Nixon contends that the reviewing judge erred in his analysis of
s. 41 and in his application of it to the facts found by the Tribunal. She
contends, relying upon Brossard (Town) v. Quebec (Commission des
droits de la personne),[1988] 2 S.C.R. 279, 53 D.L.R. (4th) 609, that an entity
relying on s. 41: (1) must, as its primary purpose, have the promotion of
the interests and welfare of an identifiable group of persons characterized
by a common ground of prohibition under the Code; (2) establish
a connection between the ground of discrimination and a primary purpose of
the organization; and (3) justify the exclusion in an objective sense by the
particular nature of the organization. She relies as well upon a passage
from the reasons of La Forest J. in Gould in reference to a
provision in the Yukon Human Rights Act similar to our s. 41:

The
exempted discrimination, I would have thought must be of a kind necessary
to the furtherance of the fundamental objects of the organization.

[48]On the Tribunal's conclusion that the primary purpose of the Society
was "providing services to the victims of rape" and being an "educational
force for progressive changes in attitudes, laws, institutional procedures,
and to work for the prevention of rape", Ms. Nixon says that the requisite
connection between the Society's primary purpose and its discrimination of
her which is essential to a s. 41 defence, is missing. She says further that
justification, in an objective sense, was not established. She is supported
in these submissions by the intervenor EGALE.

[49]Ms. Nixon contends, further, that the reviewing judge should not have
relied upon R. v. Powley, [2003] 2 S.C.R. 207, 230 D.L.R. (4th)
1, a case decided after the judicial review proceeding hearing and on which
counsel were not asked for submissions. Lastly, she contends that in the
event s. 41 is ambiguous, s. 15 of the Charter is relevant as
an aid to assist in that interpretation.

[50]Notwithstanding the able submissions on behalf of Ms. Nixon and EGALE,
I have concluded that s. 41 applies, largely for the reasons of the reviewing
judge.

[51]The leading case on s. 41 is Caldwell et al. v. Stuart et al.,
[1984] 2 S.C.R. 603, 15 D.L.R. (4th) 1, 66 B.C.L.R. 398. Caldwell
concerned a Roman Catholic teacher who was not re-hired for the following
school year as she had married a divorced man in a civil ceremony contrary
to church dogma. In his reasons for judgment, McIntyre J. confirmed that
then s. 22 (now s. 41) permitted the preference of one member of the identifiable
group over another, saying at p. 626:

This
section, while indeed imposing a limitation on rights in cases where it applies,
also confers and protects rights. I agree with Seaton J.A. in the Court of
Appeal where he expressed this thought in these words:

This is the
only section in the Act that specifically preserves the right to associate.
Without it the denominational schools that have always been accepted as a
right of each denomination in a free society, would be eliminated. In a negative
sense s. 22 is a limitation on the rights referred to in other parts of the
Code. But in another sense it is a protection of the right to associate.
Other sections ban religious discrimination; this section permits the promotion
of the religion.

And at p. 628:

… In failing to renew the contract of Mrs. Caldwell, the school authorities
were exercising a preference for the benefit of the members of the community
served by the school and forming the identifiable group by preserving a teaching
staff whose Catholic members all accepted and practised the doctrines of the
Church. …

In the result, the school was found to be entitled to
make a preference among the members of the Catholic community.

[52]Brossard, the case relied upon by Ms. Nixon, was decided subsequent
to Caldwell. Brossard concerned a complaint that
an anti-nepotism policy precluded the complainant from employment. At the
time the complaint in Brossard was initiated, the Quebec Charter
of Human Rights and Freedoms, R.S.Q. 1977, c. 12, rolled the defence
of bona fide occupational requirement and a group rights exemption
into the same provision, s. 20, in a way that engaged the issue of justification
for the group rights exemption:

A
distinction, exclusion or preference based on the aptitudes or qualifications
required in good faith for an employment, or justified by the charitable,
philanthropic, religious, political or educational nature of a non-profit
institution or of an institution devoted exclusively to the well-being of
an ethnic group, is deemed non-discriminatory.

[53]An examination of our s. 41 reveals no analogous requirement to the
justification required by that section considered and discussed in Brossard.
For that reason, I do not read the test set out in Brossard
as determinative of this case. We are, however, bound by Caldwell.

[54]Nor, in my view, does Gould modify the law expressed
in Caldwell; the majority in Gould declined to
deal with the Yukon statute’s group rights provision.

[55]At the hearing of the complaint the Society advanced the argument that
its purposes and activities are a bona fide and reasonable justification,
a defence under s. 8, and a bona fide occupational requirement, a defence
under s. 13. The Tribunal dismissed both defences and in doing so, concluded
that the Society's exclusion of Ms. Nixon was rationally connected to the
Society's work and was adopted in good faith, but was not reasonably necessary
to accomplish the Society’s purpose.

[56]On the basis of Caldwell (and given the difference between
s. 41 and the provision considered in Brossard), the dual conclusion
of the Tribunal that the exclusion was rationally connected to the Society’s
work and was in good faith, was sufficient, in my view, for the purposes of
s. 41 of the Code.

[57]Further, I would not find that the reviewing judge erred in referring
to Powley in the passages I have not replicated. Although Powley
is not a human rights case, it speaks to the question of community and is
useful by analogy.

[58]All of this is to say that, in my view, the reviewing judge was correct
in following the guidance of Caldwell and concluding that a
group can prefer a sub-group of those whose interests it was created to serve,
given good faith and provided there is a rational connection between the preference
and the entity's work, or purpose. Just as the school was not required to
establish that it only served practicing Catholics in order to lawfully prefer
practicing Catholics in its hiring practices for purposes of the group rights
exemption, so here the Society is not required to establish that it only serves
women raised and who have lived as females. And just as the School was not
required to show that it never employed non-Catholics, here the Society is
not required to show it never provided services to transsexuals.

[59]I conclude that on the reasoning of Caldwell, the Society
was not required to establish that its primary purpose was to promote the
interests of women who have lived their entire lives as females in order to
benefit from s. 41. The Society was entitled to exercise an internal preference
in the group served, to prefer to train women who had never been treated as
anything but female.

Other Issues

[60]In its factum, the Tribunal contends that the reviewing judged erred
when he “conducted his own review of the evidence and arrived at his own determination
regarding the correct outcome." In support of that submission, it referred
to those matters considered by the Tribunal, including evidence before it.

[62]In response, the Tribunal says that those cases allow it to make submissions
it has advanced and that it did not stray into submissions on the merits of
the appeal.

[63]The submissions in contention addressed the Tribunal's proposition
that the reviewing judge correctly set forth the applicable standard, but
erred in holding that the Tribunal was unreasonable in its conclusion on s.
41.

[64]The authorities on this question are conveniently gathered in British
Columbia Securities Commission v. Pacific International Securities Inc.(2002), 2 B.C.L.R. (4th) 114, 2002 BCCA 421. They contemplate a Tribunal speaking
to its jurisdiction but not speaking to the merits of the appeal of its decision.

[65]Given the three standards of review and the submersion of the issue
of jurisdiction in administrative law, the Tribunal may be allowed to speak
to the reasonableness of the decision as was done in Paccar,
although in a fashion that points to features of the case rather than the
train of reasoning.

[66]I do not consider that the Tribunal overstepped its mark in this case.

[67]Earlier in the decision, I discussed the task of this Court without
reference to the new British Columbia Administrative Tribunals Act,
S.B.C. 2004, c. 45. The Attorney General contended that the standard of review
set out in that Act applies to this appeal, although it was
not in force at the time the order appealed was made.

[68]Section 59 of the Administrative Tribunals Act requires
the court to apply the correctness standard to all questions except findings
of fact and the application of common law rules of natural justice and fairness.
As to a finding of fact, it states that a finding of fact may not be set aside
"unless there is no evidence to support it or in light of all the evidence,
the finding is otherwise unreasonable".

[69]The question we were asked to answer is whether that section applies
to this appeal.

[70]I have concluded that the interpretation of s. 41 given by the reviewing
judge was correct. On that conclusion, application of the Act
makes no difference, and I have not addressed, therefore, the interesting
question of its application to this proceeding.

Conclusion

[71]It follows that I would dismiss the appeal.

“The Honourable Madam Justice Saunders”

ADDENDUM

Sections of the Human Rights Act as they were in force
August 1995 (the date of the events in issue)

Section 1(b)

“discrimination”
includes the conduct described in section 3(1)(a), 4(a) or (b),
5(1)(a), 6, 8(1)(a) or (2) or 9(a) or (b)

Section 3(1)(a) (later s. 8(1)(a))

3.(1)
No person, without a bona fide and reasonable justification, shall

(a) deny to a person or class of persons any accommodation,
service or facility customarily available to the public, or

(b) discriminate against a person or class of
persons with respect to any accommodation, service or facility customarily
available to the public,

because of the race, colour, ancestry, place of origin, religion, marital
status, family status, physical or mental disability, sex or sexual orientation
of that person or class of persons.

Section 8 (1)(a) (later s. 13(1)(a))

8.(1)
No person shall

(a) refuse to employ or refuse to continue to
employ a person, or

(b) discriminate against a person with respect
to employment or any term or condition of employment,

because of the race, colour, ancestry, place of origin, political belief,
religion, marital status, family status, physical or mental disability, sex,
sexual orientation or age of that person or because that person has been convicted
of a criminal or summary conviction offence that is unrelated to the employment
or to the intended employment of that person.

Section 19 (later s. 41)

19.(1)
Where a charitable, philanthropic, educational, fraternal, religious, or social
organization or corporation that is not operated for profit has as a primary
purpose the promotion of the interests and welfare of an identifiable group
or class of persons characterized by a physical or mental disability or by
a common race, religion, age, sex, marital status, political belief, colour,
ancestry or place of origin, that organization or group shall not be considered
as contravening this Act because it is granting a preference to members of the identifiable group or class of
persons.

Section 22 at the time of Caldwell (later s. 19
and now s. 41)

22.
Where a charitable, philanthropic, educational, fraternal, religious, or social
organization or corporation that is not operated for profit has as a primary
purpose the promotion of the interest and welfare of an identifiable group
or class of persons characterized by a common race, religion, age, sex, marital
status, political belief, colour, ancestry or place of origin, that organization
or group shall not be considered as contravening this Act because it is granting a preference to members of the identifiable
group or class of persons.

Section
3 of the Code Subsequently Enacted

3 The purposes of this Code are as follows:

(a) to foster a society in British Columbia in
which there are no impediments to full and free participation in the economic,
social, political and cultural life of British Columbia;

(b) to promote a climate of understanding and
mutual respect where all are equal in dignity and rights;

(c) to prevent discrimination prohibited by this
Code;

(d) to identify and eliminate persistent patterns
of inequality associated with discrimination prohibited by this Code;

(e) to provide a means of redress for those persons
who are discriminated against contrary to this Code.

Reasons for Judgment of the Honourable Chief Justice
Finch:

[72]I have had the advantage of reading in draft form the reasons of Madam
Justice Saunders. I agree with her that the appeal should be dismissed, but
wish to state in a more abbreviated form the reasons that, in my opinion,
lead to that conclusion.

[73]Discrimination is defined in s. 1(b) of the Human Rights Act
to include conduct that offends ss. 8(1)(a) and 13(1)(a). The Human Rights
Tribunal found that there was a denial of “service” within the meaning of
s. 8(1)(a). In my opinion that was a correct conclusion of law. The learned
chambers judge erred in holding that breach of s. 8(1)(a) was not discrimination.

[74]It is therefore not necessary to address the more difficult issue of
whether there was a breach of s. 13(1)(a). Whether volunteer work qualifies
as employment and hence whether denial of a volunteer position equates with
denial of employment, is a question better left for another case.

[75]It is similarly unnecessary to decide whether the analysis in Law
v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R.
497 applies in deciding if discrimination has been established; and it also
unnecessary to decide whether the Court’s decision in Reaney
applies in these circumstances, or whether it was decided per incuriam.

[76]I agree with my colleagues that the conduct of the respondent Society
is exempted from a finding of discrimination by s. 41 of the Code,
essentially for the reasons of the learned chambers judge (see especially
at paras. 113 to 120 of his reasons).

[77]The respondent Society was entitled to give preference to women who
are not post-operative transsexuals, because there is a rational connection
between the preference and the respondent’s work or purpose.

[78]For these reasons I too would dismiss the appeal.

“The
Honourable Chief Justice Finch”

Reasons
for Judgment of the Honourable Madam Justice Southin:

[79]I have had the privilege of reading in draft the reasons for judgment
of my colleague, Saunders J.A., with whose disposition of this appeal I agree.

[80]I add words of my own only because of the importance of the case to
the appellant in particular and, perhaps, to transsexuals in general.

[81]Sex reassignment has only been medically possible for the last 35 years
or so. The earliest work – it was first published in 1974 – I know of on
the emotional implications is Conundrum by Jan Morris, an author of
great distinction. Indeed, as James Morris, it was he who first sent forth
to the world of 1953 the news that Hillary and Tensing had conquered Mt. Everest.

[82]But it takes many years for society in general to adjust itself to
radical developments in the human condition.

[83]To force people, especially those in an organization such as the respondent,
which has its own radical agenda, to associate with those who for some reason
deeply offend their own avowed principles, can lead not to acceptance or at
least toleration, but, if not to hatred, at least to animosity.

[84]Section 41 of the Human Rights Code is intended, in my
opinion, to give, in cases within it, the right not to associate. Implicit,
in my opinion, is that freedom of association includes freedom from association.